Question 1

Who is a derivative claimant under Texas law, and who is exempt?

Accepted Answer

Section 53.056(a) describes the class simply: a claimant other than an original contractor. The section heading calls that party a derivative claimant. So the subcontractor, the sub-subcontractor, the material supplier and the equipment supplier below the original contractor are all inside it, while the original contractor, which holds the contract with the owner, is outside it and sends nothing under this section. There is one further carve-out written into subsection (a): except as provided by Section 53.057. Section 53.057 is the separate retainage notice, and it takes over to the extent that a claim for unpaid retainage is not included wholly or partly in a Section 53.056 notice. Everything that is not retainage stays on the Section 53.056 track.

Question 2

When is the Texas notice of claim for unpaid labor or materials due?

Accepted Answer

On a calendar date rather than after a number of days. Section 53.056(a-1) requires the notice to be sent, for projects other than residential construction projects, not later than the 15th day of the third month after the month during which the labor or materials were provided, or during which the undelivered specially fabricated materials would normally have been delivered. For residential construction projects it is the 15th day of the second month after that month. The word month there is the key to the whole mechanism: each month in which you provided unpaid labor or materials generates its own notice with its own date, so a claimant unpaid from March through June is looking at four notices and four deadlines rather than one. Section 53.003(e) adds that where the last day of the period is a Saturday, Sunday or legal holiday, the period extends to the next day that is not one of those.

Question 3

Who must receive the Texas notice?

Accepted Answer

Both the owner or reputed owner and the original contractor. Section 53.056(a-1) says the claimant must send a notice of claim for unpaid labor or materials to the owner or reputed owner and the original contractor, and the 2022 amendment to the section heading made that conjunction deliberate: it previously read NOTICE TO OWNER OR ORIGINAL CONTRACTOR and now reads NOTICE TO OWNER AND ORIGINAL CONTRACTOR. The practical consequence is that a claimant who has always dealt with the general contractor and has never met the owner still has to reach the owner, and a claimant who notified only the owner has not complied. The form itself asks separately for the original contractor's name and for the party with whom the claimant contracted if different from the original contractor, which is a useful prompt on a job with several tiers.

Question 4

How must a Texas notice of claim be delivered?

Accepted Answer

Section 53.003(b) gives three routes and makes them mandatory. Any notice or other written communication required by the chapter must be delivered in person to the party entitled to the notice or to that party's agent; by certified mail; or by any other form of traceable, private delivery or mailing service that can confirm proof of receipt. The 2022 amendment changed may be delivered to must be delivered and removed registered mail, so the older advice to use registered mail is out of date. The certified mail route carries a built-in advantage under Section 53.003(c): if notice is sent by certified mail, deposit or mailing of the notice in the United States mail in the form required constitutes compliance with the notice requirement, and that subsection does not apply only where the law requires actual receipt by the addressee. So the mailing receipt is the proof for that route.

Question 5

Which lines does Texas require on the notice?

Accepted Answer

Section 53.056(a-2) prints the form and requires the notice to be in substantially that form. It opens with the caption NOTICE OF CLAIM FOR UNPAID LABOR OR MATERIALS, then the line WARNING: This notice is provided to preserve lien rights, then the sentence that the owner's property may be subject to a lien if sufficient funds are not withheld from future payments to the original contractor to cover this debt. Then come the fields: Date; Project description and/or address; Claimant's name; Type of labor or materials provided; Original contractor's name; Party with whom claimant contracted if different from original contractor; Claim amount; the claimant's contact person; and the claimant's address. Section 53.056(a-3) adds that the notice may include an invoice or billing statement, which is a practical way to support the claim amount without rewriting it.

Question 6

Does the Texas notice make the owner hold back money?

Accepted Answer

It authorizes the owner to, and that is the point of it. Section 53.081(a) provides that if an owner receives notice under Section 53.056 or 53.057, the owner may withhold from payments to the original contractor an amount necessary to pay the claim for which the notice was received, and that the withholding may be in addition to any reserved funds. Section 53.081(b) adds that if notice is sent under Section 53.056, the owner may withhold the funds immediately on receipt. Section 53.082 then requires the owner to retain the withheld funds until the time for filing the lien affidavit has passed or, where an affidavit was filed, until the claim is satisfied or released, unless the claim is settled, discharged, indemnified against under Subchapter H or I, or determined invalid by a final judgment. Section 53.084(b) completes the loop by making the owner liable for money paid to the original contractor after the owner was authorized to withhold.

Question 7

Do Texas retainage claims need their own notice?

Accepted Answer

Yes, where the Section 53.056 notice did not already cover them. Section 53.057(a) provides that to the extent a claim for unpaid retainage is not included wholly or partly in a notice under Section 53.056, a claimant other than an original contractor whose contract provides for retainage must give notice under Section 53.057 for a lien for unpaid retainage to be valid. Section 53.057(a-1) sets a different clock: the notice goes to the owner or reputed owner and the original contractor not later than the earlier of the 30th day after the date the claimant's contract is completed, terminated or abandoned, or the 30th day after the date the original contract is terminated or abandoned. Section 53.057(a-2) prints its own form, captioned NOTICE OF CLAIM FOR UNPAID RETAINAGE, which replaces the claim amount line with a Total retainage unpaid line.

Question 8

Does the 2022 Texas rewrite apply to an older contract?

Accepted Answer

No, and this is the detail most likely to cause a wrong answer on an older job. Section 37 of the 2021 act provides that the changes in law made by the act apply only to an original contract entered into on or after the effective date, that an original contract entered into before that date is governed by the law as it existed immediately before the effective date, and that the prior law is continued in effect for that purpose. Section 38 sets the effective date at January 1, 2022. Note which contract date controls: the ORIGINAL contract, between the owner and the original contractor, not your own subcontract. The same act also repealed the old notice provisions outright, including Sections 53.056(b) through (f) and Sections 53.252 and 53.253, so published Texas guidance written before 2022 describes warning paragraphs and separate bond notice sections that no longer exist for post-2021 original contracts.

Texas Notice of Claim for Unpaid Labor or Materials

Find out where you stand in Texas

Introduction

Key Things to Know

Key decisions before you file

Customize your Preliminary Notice Template with DocDraft

Texas Requirements for Preliminary Notice

Only a Derivative Claimant Sends It

The 15th Day of the Third Month After the Month of the Work

Residential Construction Projects Run on the Second Month

The Owner or Reputed Owner AND the Original Contractor

Three Mandatory Delivery Routes, and Registered Mail Is No Longer One

The Printed Form and Its WARNING Line

The Notice Lets the Owner Withhold Funds Immediately

Retainage Has Its Own Notice, and Pre-2022 Contracts Have Their Own Law

Frequently Asked Questions